Citation Nr: 1003283
Decision Date: 01/22/10 Archive Date: 02/01/10
DOCKET NO. 08-08 964 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for right
ear hearing loss.
2. Entitlement to service connection for right ear hearing
loss.
3. Entitlement to service connection for a bilateral foot
disability, to include as secondary to herbicide exposure or
to a service-connected cerebrovascular accident.
4. Entitlement to a compensable rating for hypertension.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Adams, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1967 to March
1987.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a December 2006 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Huntington,
West Virginia, that denied the benefits sought on appeal.
In August 2009, the Veteran testified before the Board via
video conference. At that hearing, the Veteran raised a new
claim of entitlement to service connection for tinnitus. As
that claim has not been developed for appellate review, the
Board refers it to the RO for appropriate action.
The issues of entitlement to service connection for a
bilateral foot disability and a compensable rating for
hypertension are remanded to the RO via the Appeals
Management Center in Washington, D.C.
FINDINGS OF FACT
1. The Veteran did not timely appeal a February 1988 rating
decision that denied service connection for hearing loss.
2. Evidence submitted since the February 1988 rating
decision, when considered with previous evidence of the
record, relates to an unestablished fact necessary to
substantiate the Veteran's claim and raises a reasonable
possibility of substantiating the claim.
3. The Veteran's current level of hearing loss in the right
ear does not meet the criteria to constitute a disability for
VA purposes under the provisions of 38 C.F.R. § 3.385.
CONCLUSIONS OF LAW
1. The February 1988 rating decision that denied service
connection for hearing loss is final. 38 U.S.C.A. § 7105
(West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103
(2009).
2. New and material evidence has been received to reopen the
claim for service connection for right ear hearing loss.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009).
3. Service connection for right ear hearing loss is not
warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307,
3.309 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. 38 U.S.C.A. §§ 5103, 5103A,
5107 (West 2002); 38 C.F.R. § 3.159 (2009). The notice must:
(1) inform the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) inform the claimant about the information and evidence
that VA will seek to provide; and (3) inform the claimant
about the information and evidence the claimant is expected
to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements apply to all five
elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Further, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Notice errors are presumed prejudicial unless VA shows that
the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. Sanders v. Nicholson, 487 F.3d
881 (2007).
In April 2006 and April 2007, prior to and after the initial
adjudication of the claim, the Veteran was notified of the
evidence not of record that was necessary to substantiate the
claim. He was told that he needed to provide the names of
persons, agency, or company who had additional records to
help decide his claim. He was informed that VA would attempt
to obtain review his claim and determine what additional
information was needed to process his claim, schedule a VA
examination if appropriate, obtain VA medical records, obtain
service records, and obtain private treatment reports as
indicated.
There is no allegation from the Veteran that he has any
evidence in his possession that is needed for a full and fair
adjudication of the claim for service connection.
The Veteran was given notice of what type of information and
evidence he needed to substantiate a claim for an increased
rating in April 2006 and April 2007 should his service
connection claim be granted. It is therefore inherent in the
claim that the Veteran had actual knowledge of the rating
element of an increased rating claim.
Therefore, the Board finds that adequate notice was provided
to the appellant prior to the transfer and certification of
the Veteran's case to the Board and complied with the
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b).
Next, the statutes and regulations require that VA make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate a claim. VA's duty to
assist includes (1) obtaining records not in the custody of a
federal department or agency; (2) obtaining records in the
custody of a federal department or agency; (3) obtaining
service medical records or other records relevant to active
duty and VA or VA-authorized medical records; and, (4)
providing medical examinations or obtaining medical opinions
if necessary to decide the claim. 38 C.F.R. § 3.159(c).
VA has a duty to obtain a medical examination if the evidence
establishes (1) a current disability or persistent or
recurrent symptoms of a disability, (2) an in-service event,
injury, or disease, (3) current disability may be associated
with the in-service event, and (4) there is insufficient
evidence to make a decision on the claim. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
In this case, the Veteran's service medical records and all
identified and authorized post-service medical records
relevant to the issues on appeal have been requested or
obtained. With respect to the Veteran's claim for service
connection for right ear hearing loss, the Veteran was
afforded VA examinations in September 1987 and October 2007.
While the examiners failed to comment on the functional
effects caused by the Veteran's hearing loss, the Board finds
that the examinations are adequate for VA purposes and that
VA is not obligated to provide a third examination in this
case because the evidence does not establish the presence of
any current right ear hearing loss disability for VA
purposes. 38 C.F.R. §§ 3.159(c)(4), 3.385 (2009); Martinak
v. Nicholson, 21 Vet. App. 447 (2007). Therefore, the
available records and medical evidence have been obtained in
order to make adequate determinations as to this claim.
In sum, the Board finds the duty to assist and duty to notify
provisions have been fulfilled and no further action is
necessary under those provisions.
New and Material Evidence
A February 1988 rating decision denied service connection for
hearing loss. Although the RO reopened the claims in a
February 2008 statement of the case and has adjudicated the
issue of entitlement to service connection on the merits, the
Board must consider the question of whether new and material
evidence has been received because it goes to the Board's
jurisdiction to reach the underlying claims and adjudicate
the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed.
Cir. 2001). If the Board finds that no such evidence has
been offered, that is where the analysis must end. Barnett
v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v.
Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown,
8 Vet. App. 1 (1995).
A finally adjudicated claim is an application which has been
allowed or disallowed by the agency of original jurisdiction,
the action having become final by the expiration of one year
after the date of notice of an award or disallowance, or by
denial on appellate review, whichever is the earlier.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d),
20.302, 20.1103 (2009). Thus, the February 2003 decision
became final because the Veteran did not file a timely
appeal.
The claim for service connection may be reopened if new and
material evidence is submitted. Manio v. Derwinski, 1 Vet.
App. 140 (1991). The Veteran filed this application to
reopen his claim in September 2005. New evidence means
existing evidence not previously submitted to agency decision
makers. Material evidence means existing evidence that, by
itself or when considered with previous evidence of record,
relates to an unestablished fact necessary to substantiate a
claim. New and material evidence can be neither cumulative
or redundant of the evidence of record at the time of the
last prior denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a) (2009). Only evidence presented
since the last final denial on any basis will be considered,
in the context of the entire record. Evans v. Brown, 9 Vet.
App. 273 (1996). In determining whether evidence is new and
material, the credibility of the new evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992).
At the time of the February 1988 decision, the evidence
consisted of the Veteran's service medical records and VA
examinations dated in September 1987 and October 1987. The
RO denied the Veteran's claim based on the fact that a VA
audiology examination revealed normal hearing in the right
ear.
New evidence includes additional post-service treatment
records, VA examinations, statements from the Veteran, and
the Veteran's August 2009 testimony before the Board. The
new evidence also includes a January 2008 VA opinion that the
Veteran's hearing loss is most likely caused by or a result
of his military service as a pilot. The Board finds that the
evidence received since the last final decision is new and
material evidence and raises a reasonable possibility of
substantiating this claim because it addresses a previously
unestablished fact, that the Veteran's right ear hearing loss
is related to his service.
Therefore, the Board finds that new and material evidence
sufficient to reopen the claim has been received. New and
material evidence having been submitted, the claim for
service connection for right ear hearing loss is reopened,
and the appeal is granted to that extent only.
Service Connection
A claimant with active service may be granted service
connection for a disease or disability either incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. §§ 3.303, 3.304. Service incurrence will be
presumed for organic diseases of the nervous system such as
sensorineural hearing loss if manifest to a degree of 10
percent or more within one year after active service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
The disease entity for which service connection is sought
must be chronic as opposed to merely acute and transitory in
nature. For the showing of chronic disease in service, there
is required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time as distinguished from merely
isolated findings or a diagnosis including the word chronic.
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. Where the fact of chronicity in service is not
adequately supported then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000);
Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v.
Principi, 3 Vet. App. 542 (1992). Where the determinative
issue involves medical causation or a medical diagnosis,
there must be competent medical evidence to the effect that
the claim is plausible. Lay assertions of medical status do
not constitute competent medical evidence. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
The record before the Board contains service treatment
records and post-service medical records, which will be
addressed as pertinent. Dela Cruz v. Principi, 15 Vet.
App. 143 (2001) (a discussion of all evidence by the Board is
not required when the Board has supported its decision with
thorough reasons and bases regarding the relevant evidence).
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
Veteran's claim for right ear hearing loss. The medical
evidence does not indicate that the Veteran currently has
right ear hearing loss that is disabling for VA purposes.
38 C.F.R. § 3.385 (2009).
Applicable regulations provide that impaired hearing shall be
considered a disability when the auditory thresholds in any
of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz
are 40 decibels or greater; the thresholds for at least three
of these frequencies are 26 decibels or greater; or when
speech recognition scores are 94 percent or less. 38 C.F.R.
§ 3.385 (2009).
The Veteran engaged in combat with the enemy during his
service in Vietnam, as is shown by his military record and
the awards and decorations he received during service. As
there is evidence that the Veteran participated in combat, he
is presumed to have been exposed to acoustic trauma in
service. 38 U.S.C.A. § 1154(b) (West 2002). However, even
if the Veteran was exposed to acoustic trauma in service, a
nexus between his current disabilities and the in-service
exposure to acoustic trauma must be shown.
The Veteran's service medical records include a June 1966
report of medical history and March 1967 pre-flight
examination that indicate that the Veteran had running ears
in childhood and an ear block in February 1966 without any
complications or sequelae. Reports of examination dated in
January 1982 and February 1983 reflect diagnoses of high
frequency left ear hearing loss, but are void of any
diagnosis of right ear hearing loss. An October 1983 report
reflects a diagnosis of high frequency right ear hearing loss
since 1966 without progression and a December 1983
aeromedical summary reflects a diagnosis of stable bilateral
high frequency hearing loss. However, while some of the
audiological examinations during the Veteran's service
diagnosed right ear hearing loss, all of the clinical
findings revealed hearing that was normal by VA standards.
38 C.F.R. § 3.385 (2009).
The Veteran was afforded a VA audiology examination in
September 1987 that reflected normal hearing in the right
ear.
The Veteran was afforded a VA audiology examination in
October 2007. While the claims file was unavailable, the
Veteran presented copies of his service medical records. The
examiner noted that a July 1966 examination showed pure tone
thresholds that indicated normal hearing bilaterally. In
October 1970, pure tone thresholds indicated normal hearing
in the right ear. In May 1978, pure tone thresholds
indicated normal hearing in the right ear. The Veteran
presented a history of military noise exposure from aircraft,
explosions, and small arms fire. He reported occasional use
of hearing protection devices and denied occupational or
recreational noise exposure and a history of left ear
infection one year ago. On examination, pure tone air
conduction thresholds in the right ear at 500, 1000, 2000,
3000, and 4000 Hertz were 20, 20, 15, 20, and 30,
respectively, with an average of 21 decibels and a speech
recognition score of 94. The Veteran was diagnosed with
normal to mild sensorineural hearing loss in the right ear.
In a January 2008 addendum to the October 2007 VA audiology
examination, the examiner indicated that the claims file was
reviewed and that an Air Force hearing test in June 1966
indicated normal hearing bilaterally. Audiograms in March
1967 and September 1969 indicated normal hearing in the right
ear. Audiograms in December 1974, December 1975, and November
1976 indicated normal hearing bilaterally, and normal hearing
in the right ear in 1977. A December 1986 audiogram showed
mild high frequency sensorineural hearing loss at 6000 Hertz.
The examiner opined that based on findings in the October
2007 examination, the Veteran exhibited a mild high frequency
sensorineural hearing loss in the right ear. The rationale
provided was that when a person was exposed to loud noise
over a long period of time, symptoms of noise induced hearing
loss increase gradually. The examiner opined that based on
the evidence, the noise exposure history, education, and
clinical experience, it was the opinion of the examiner that
the Veteran's bilateral hearing loss was most likely caused
by or a result of his military service as a pilot. Although
the Veteran was noted to have a pre-existing hearing loss on
entrance to service, there was substantial evidence of normal
hearing one year prior to service and during active service.
Furthermore, the Veteran experienced significant threshold
shifts from 1967 to 1987 that had resulted in permanent
impairment.
In the January 2008 addendum, the October 2007 examiner
diagnosed the Veteran with a mild high frequency
sensorineural hearing loss in the right ear and opined that
his bilateral hearing loss is most likely caused by or a
result of his military service as a pilot. The examiner also
inferred that the Veteran's right ear hearing loss underwent
an increase in disability and was aggravated by his service
by opining that the Veteran experienced significant threshold
shifts between 1967 to 1987 that resulted in permanent
impairment. However, while the audiological findings
indicate that the Veteran does have some hearing loss in the
right ear that the examiner has opined is related to service,
the Veteran's current level of hearing in the right ear is
not disabling for VA purposes. 38 C.F.R. § 3.385 (2009).
The Board recognizes the Veteran's contention that he
currently has right ear hearing loss that is related to his
service. Lay statements are considered to be competent
evidence when describing the features or symptoms of an
injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995).
As a layperson, however, he is not competent to provide an
opinion requiring medical knowledge, such as a diagnosis, or
an opinion relating to medical causation and etiology that
requires a clinical examination by a medical professional.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board
acknowledges that the Veteran is competent to give evidence
about what he experienced. Layno v. Brown, 6 Vet. App. 465
(1994). Competency, however, must be distinguished from
weight and credibility, which are factual determinations
going to the probative value of the evidence. Rucker v.
Brown, 10 Vet. App. 67 (1997). As a result, his assertions
do not constitute competent evidence that he currently
suffers from right ear hearing loss that comports with VA
requirements for consideration as a disability. 38 C.F.R.
§ 3.385 (2009).
While the October 2007 VA examiner opined that the Veteran's
right ear hearing loss is related to his service, the Board
finds that there are no post-service medical records that
demonstrate that the Veteran currently has a diagnosed right
ear hearing loss that is disabling for VA purposes.
38 C.F.R. § 3.385 (2009). Thus, while the Veteran was
diagnosed with right ear hearing loss on VA examination that
was related to his service, the audiological findings do not
satisfy the criteria for any right ear hearing loss to be
considered a disability for VA purposes. Congress
specifically limits entitlement for service-connected disease
or injury to cases where such incidents have resulted in a
disability. 38 U.S.C.A. § 1110 (West 2002). In the absence
of proof of a present disability, there can be no valid
claim. The Board's review of the record in this case shows
no competent proof of present right ear hearing loss
disability for VA purposes. Rabideau v. Derwinski, 2 Vet.
App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223
(1992). In the absence of evidence showing a current level
of hearing in the right ear that is disabling for VA
purposes, service connection cannot be granted.
Accordingly, the Board finds that the preponderance of the
evidence is against the Veteran's claim and service
connection for right ear hearing loss is denied. 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for right ear hearing loss is denied.
REMAND
Additional development is needed prior to the disposition of
the Veteran's claims for a bilateral foot disability and
hypertension.
VA has a duty to assist claimants in the development of facts
pertinent to claims and VA must accomplish additional
development of the evidence if the record before it is
inadequate. 38 U.S.C.A. § 5103A. The Board regrets the
additional delay that will result from this remand.
Nevertheless, the Board is constrained by the fact that
proper adjudication of the claims requires additional
development.
Additional treatment records may be outstanding. The Board
notes that the most recent VA medical records are dated in
August 2009. To aid in adjudication, any subsequent VA
medical records should be obtained. In addition, during the
August 2009 hearing the Veteran testified that private MRI
examinations of the spine that should be obtained.
The Veteran's service personnel records reflect service in
Vietnam. Thus, the Veteran is presumed to have been exposed
to Agent Orange. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R.
§§ 3.307(a)(6), 3.309(e) (2009).
The Veteran claims that he currently has a bilateral foot
disability that is either due to herbicide exposure during
his service or related to his service-connected
cerebrovascular accident. The service medical records are
void of findings, complaints, symptoms, a diagnosis of, or
treatment for any bilateral foot disability. Post-service
treatment records include a May 2005 private report from a
vascular surgeon that reflects complaints of bilateral leg
numbness with standing suggestive of lumbar stenosis. Air
Force medical reports dated in July 2005 reflect diagnostic
impressions of leg numbness with stocking distribution, most
characteristic for peripheral polyneuropathy; exertional leg
pain and numbness; and a history of Agent Orange exposure of
unclear significance relative to the Veteran's neurological
symptoms.
In January 2007, a private physician opined that there was
consideration as to whether the Veteran's bilateral foot
disability "could be Agent-Orange" related during his
service in Vietnam and diagnosed him with neuropathy. In
September 2007, the Veteran was afforded a VA neurological
disorders examination at which time he presented with a
history of idiopathic peripheral neuropathy with an onset of
2000. He complained of a loss of sensation over his feet and
ankles and was diagnosed with peripheral neuropathy, but an
opinion was not provided. In August 2007, a VA physician
opined that there was uncertainty as to whether exposure to
dioxin could cause peripheral neuropathy. In December 2007,
the Veteran was diagnosed with peripheral neuropathy of
unclear etiology. In February 2008, he was diagnosed with
unspecified idiopathic peripheral neuropathy.
VA's duty to assist includes a duty to provide a medical
examination or obtain a medical opinion where it is necessary
to make a decision on the claim. 38 U.S.C.A. § 5103A(d);
38 C.F.R. 3.159(c)(4) (2009); Robinette v. Brown, 8 Vet.
App. 69 (1995). Although the Veteran is competent to report
the onset of a bilateral foot disability during and after his
service, he is not competent to diagnose or to relate any
current bilateral foot disability to his active service,
including herbicide exposure, or to his service-connected
cerebrovascular accident. Accordingly, the Board finds that
a VA examination is necessary in order to fairly decide his
claim. McLendon v. Nicholson, 20 Vet. App. (2006). The
examiner on remand should specifically reconcile the opinion
with the May 2005 and January 2007 private opinions, August
2007 VA opinion, and any other opinions of record.
With respect to the Veteran's claim for a compensable rating
for hypertension, the Veteran was afforded a VA hypertension
examination in October 2007. VA's duty to assist includes
the conduct of a thorough and comprehensive medical
examination. Robinette v. Brown, 8 Vet. App. 69 (1995).
When available evidence is too old for an adequate evaluation
of the veteran's current condition, VA's duty to assist
includes providing a new examination. Weggenmann v. Brown,
5 Vet. App. 281 (1993). Although the Veteran's last VA
examination is not necessarily stale, since it appears from
the statements and medical evidence of record that the
Veteran's hypertension may have worsened since the date of
the latest examination, the Board finds that a new
examination is in order. Specifically, the Veteran has
stated that he had two emergency room visits in December
2008, subsequent to the last examination.
Accordingly, the case is REMANDED for the following action:
1. Obtain the Veteran's VA treatment
records dated since August 2009.
2. After obtaining the necessary
authorization, obtain the Veteran's
private MRI examinations and any
additional private treatment records
identified by the Veteran. All attempts
to secure the records must be documented
in the claims folder.
3. Schedule a VA examination to determine
the nature and etiology of any current
bilateral foot disability. The claims
folder should be reviewed and that review
should be indicated in the examination
report. The examiner should specifically
attempt to reconcile and discuss the
opinion with all other opinions of record,
including the May 2005 and January 2007
private and August 2007 VA opinions. The
rationale for all opinions should be
provided. Specifically, the examiner
should provide the following information:
(a) Diagnose any current bilateral foot
disability.
(b) Is it at least as likely as not (50
percent or more probability) that any
bilateral foot disability was incurred in
or aggravated by the Veteran's service,
including exposure to herbicides during
service? The examiner must consider the
Veteran's statements regarding the
incurrence of a bilateral foot
disability, in addition to his statements
regarding the continuity of
symptomatology. Dalton v. Nicholson,
21 Vet. App. 23 (2007).
(c) Is it at least as likely as not
(50 percent probability or more) that
any bilateral foot disability is
proximately due to or the result of any
service-connected cerebrovascular
accident or other service-connected
disability?
(d) Is it at least as likely as not
(50 percent probability or more) that
any bilateral foot disability has been
aggravated by the Veteran's service-
connected cerebrovascular accident or
other service-connected disability?
4. Schedule a VA examination to determine
the current nature and severity of the
Veteran's service-connected hypertension.
The claims folder should be reviewed by
the examiner and that review should be
indicated in the examination report. The
examiner should specifically state whether
the Veteran's service-connected
hypertension requires continuous
medication for control. In addition, the
examiner should provide an opinion as to
whether a marked interference in
employment is caused solely by the
Veteran's service-connected hypertension.
5. Then, readjudicate the claims. If the
decision remains adverse to the Veteran,
issue a supplemental statement of the case
and allow the applicable time for
response. Then, return the case to the
Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or
the United States Court of Appeals for Veterans Claims for
development or other action must be handled in an expeditious
manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs